UNDERWRITING AGREEMENT
Exhibit (H)(1)
FORM OF
VOYA ENHANCED SECURITIZED INCOME FUND
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Suite 100
Scottsdale, Arizona 85258
[ ]
Voya Investments Distributor, LLC
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Suite 100
Scottsdale, Arizona 85258
Ladies and Gentlemen:
Voya Enhanced Securitized Income Fund is a Delaware statutory trust operating as a closed- end management investment company (hereinafter referred to as the "Fund"). The Fund has filed a registration statement on Form N-2 (File Nos. 333-219011 and 811-10223) (the "Registration Statement") under the Investment Company Act of 1940, as amended (the "1940 Act") and the Securities Act of 1933, as amended (the "1933 Act") to register one or more classes of common shares (the "Common Shares") of the Fund which may be issued and sold to the public from time to time.
You have informed us that Voya Investments Distributor, LLC is registered as a broker- dealer under the provisions of the Securities Exchange Act of 1934 and is a member in good standing of the Financial Industry Regulatory Authority. You have indicated your desire to act as distributor for certain Common Shares of the Fund issued pursuant to the Registration Statement. We have been authorized by the Fund to execute and deliver this agreement to you by a resolution of our Board of Trustees (the "Trustees") adopted at a meeting of the Trustees, at which a majority of Trustees, including a majority of our Trustees who are not otherwise interested persons of the Fund, its investment manager or its related organizations, were present and voted in favor of the said resolution approving this Underwriting Agreement.
1.Appointment of Underwriter. Upon the execution of this Underwriting Agreement and in consideration of the agreements on your part herein expressed and upon the terms and conditions set forth herein, we hereby appoint you as the exclusive distributor of the Common Shares and agree that we will deliver to you such Common Shares as may be sold through your efforts. You agree to use reasonable efforts to promote the sale of the Common Shares, but you are not obligated to sell any specific number of the Common Shares.
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2.Independent Contractor. You will undertake and discharge your obligations hereunder as an independent contractor and shall have no authority or power to obligate or bind the Fund by your actions, conduct or contracts, except that you are authorized to accept orders for the purchase or repurchase of the Common Shares as our agent. You may appoint sub-agents or distribute the Common Shares through dealers (or otherwise) as you may determine necessary or desirable from time to time. This Agreement shall not, however, be construed as authorizing any dealer or other person to accept orders for sale or repurchase on our behalf or to otherwise act as our agent for any purpose.
3.Offering Price.
(a)Common Shares of the Fund shall be offered in a continuous public offering at a price equivalent to their net asset value per share, with any applicable sales charge, as set forth in the Fund's Prospectus.
(b)On each business day on which the New York Stock Exchange is open for business, we will furnish you with the net asset value of each class of the Common Shares, which shall be determined and become effective as of the time described in the Fund's prospectus. The net asset value so determined shall apply to all orders for the purchase of Common Shares received by dealers prior to the time as of which net asset value is determined, and you are authorized in your capacity as our agent to accept orders and confirm sales at such net asset value; provided that, such dealers notify you of the time when they received the particular order and that the order is placed with you prior to the time as of which net asset value is determined. To the extent that our Shareholder Servicing and Transfer Agent (collectively,
"Agent") and the Custodian(s) for any pension, profit-sharing, employer or self-employed plan receive payments on behalf of the investors, such Agent and Custodian(s) shall be required to record the time of such receipt with respect to each payment, and the applicable net asset value shall be that which is next determined and effective after the time of receipt by them. In all events, you shall forthwith notify all of the dealers comprising your selling group and the Agent and Custodian(s) of the effective net asset value as received from us. Should we at any time calculate our net asset value more frequently than once each business day, you and we will follow procedures with respect to such additional price or prices comparable to those set forth above in this Section 3.
(c)You may enter into selected dealer agreements, on such terms and conditions as you determine are not inconsistent with this Agreement, with financial services firms, including broker-dealers, for the sale of Common Shares. You are further authorized to pay a sales commission to such firms with which you have sales agreements on sales of Common Shares from your own assets as set forth in the Prospectus. Such firms shall sell Common Shares only at the net asset value per share of such Common Shares. This Underwriting Agreement shall not be construed as authorizing any broker-dealer or other person to accept orders for sale on our behalf or to otherwise act as our agent for any purpose. You shall not be responsible for the acts of any financial services firms except as and to the extent that they shall be acting for you or under your direction or authority.
4.Orders. You shall promptly advise us of all purchase orders for Common Shares of the Fund received by you. Any order may be rejected by us; provided, however, that we will
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not arbitrarily or without reasonable cause refuse to accept or confirm orders for the purchase of Common Shares of the Fund. We or our agent will confirm orders upon receipt, will make appropriate book entries and, upon receipt by the Fund (or its agent) of payment therefor, will deliver deposit receipts for Common Shares.
5.(a) In respect of the Class A and Class C Common Shares of the Fund, the following provisions shall apply:
(i)You are entitled to receive a sales commission on the sale of Class A and Class C Common Shares of the Fund in the amounts and according to the procedures set forth in the Fund's Prospectus then in effect under the 1933 Act (including any supplements or amendments thereto.)
(ii)In addition to the payments of amounts provided for in Section 5(a)(i), you may also receive reimbursement for expenses or a maintenance or trail fee as may be required by and described in the distribution and service plan adopted pursuant to Rule 12b-1 under the 1940 Act in respect of such Class C Common Shares (the "Class C Service and Distribution Plan") and the shareholder service plan in respect of such Class A Common Shares
(the "Class A Shareholder Service Plan").
(b)In respect of the Class I Common Shares of the Fund, you are entitled to receive a sales commission on the sale of Class I Common Shares of the Fund in the amounts and according to the procedures set forth in the Fund's Prospectus then in effect under the 1933 Act (including any supplements or amendments.)
6.Payment of Common Shares. At or prior to the time of delivery of any of our Common Shares you will pay or cause to be paid to the Custodian, for our account, an amount in cash equal to the net asset value of such Common Shares. In the event that you pay for Common Shares sold by you prior to your receipt of payment from purchasers, you are authorized to reimburse yourself for the net asset value of such Common Shares from the offering price of such Common Shares when received by you.
7.Repurchases. Periodic repurchases of Common Shares are made on a quarterly basis in accordance with the Fund's Fundamental Policy on Repurchase Offers adopted in accordance with Rule 23c-3 of the 1940 Act. The terms of each repurchase offer, including the price to be paid, and the amount of any applicable early withdrawal charge to be retained by the
Fund, (the "repurchase price") shall be set forth in each notification to record holders and beneficial owners of Common Shares preceding each repurchase offer.
8.Registration of Common Shares. No Common Shares shall be registered on our books until (i) receipt by us of your written request therefor; (ii) receipt by the Custodian and Agent of a certificate signed by an officer of the Fund stating the amount to be received therefor; and (iii) receipt of payment of that amount by the Custodian. We will provide for the recording of all Common Shares purchased in unissued form in "book accounts."
9.Purchases for Your Own Account. You shall not purchase Common Shares for your own account for purposes of resale to the public, but you may purchase Common Shares for your own investment account upon your written assurance that the purchase is for investment
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purposes only and that the Common Shares will not be resold except through repurchase by the Fund.
10.Sale of Common Shares to Affiliates. Subsequent to the initial offering period, you may sell the Common Shares at net asset value per share, with a sales charge, as appropriate, pursuant to the terms set forth in the Fund's current Prospectus (i) to our Trustees and officers, our investment manager or your company or affiliated companies thereof, (ii) to the bona fide, full time employees or sales representatives of any of the foregoing who have acted as such for at least ninety (90) days, (iii) to any trust, pension, profit-sharing, or other benefit plan for such persons, or (iv) to any other person set forth in the Fund's then current Prospectus; provided, that such sales are made in accordance with the rules and regulations under the 1940 Act and that such sales are made upon the written assurance of the purchaser that the purchases are made for investment purposes only, not for the purpose of resale to the public and that the Common Shares will not be resold except through repurchase by us.
11.Allocation of Expenses.
(a)We will pay the following expenses in connection with the sales and distribution of Common Shares of the Fund:
(i)expenses pertaining to the preparation of our audited and certified financial statements to be included in any amendments ("Amendments") to our Registration Statement under the 1933 Act, including the Prospectuses and Statements of Additional Information included therein;
(ii)expenses (including legal fees) pertaining to the preparation and printing of all Amendments or supplements filed with the Securities and Exchange Commission, including the copies of the Prospectuses and Statements of Additional Information included in such Amendments and the first ten (10) copies of the definitive Prospectuses and Statements of Additional Information or supplements thereto, other than those necessitated by or related to your (including your "Parents") activities where such amendments or supplements result in expenses which we would not otherwise have incurred;
(iii)expenses pertaining to the preparation, printing, and distribution of any reports or communications, including Prospectuses and Statements of Additional Information, which are sent to our existing shareholders;
(iv)filing and other fees to federal and state securities regulatory
authorities necessary to register and maintain registration of the Common Shares; and
(v)expenses of the Agent, including all costs and expenses in connection with the issuance, transfer and registration of the Common Shares, including but not limited to any taxes and other governmental charges in connection therewith.
(b)Except to the extent that you are entitled to reimbursement under the provisions of the Class C Service and Distribution Plans or the Class A Shareholder Service Plan for the Fund, you will pay the following expenses:
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(i)expenses of printing additional copies of the Prospectus and Statement of Additional Information and any amendments or supplements thereto which are necessary to continue to offer our Common Shares to the public;
(ii)expenses (excluding legal fees) pertaining to the preparation and printing of all amendments and supplements to our Registration Statement if the Amendment or supplement arises from or is necessitated by or related to your (including your "Parent") activities where those expenses would not otherwise have been incurred by us; and
(iii)expenses pertaining to the printing of additional copies, for use by you as sales literature, of reports or other communications which have been prepared for distribution to our existing shareholders or incurred by you in advertising, promoting and selling our Common Shares to the public.
12.Furnishing of Information. We will furnish to you such information with respect to the Fund and its Common Shares, in such form and signed by such of our officers as you may reasonably request, and we warrant that the statements therein contained when so signed will be true and correct. We will also furnish you with such information and will take such action as you may reasonably request in order to qualify our Common Shares for sale to the public under the Blue Sky Laws or in jurisdictions in which you may wish to offer them. We will furnish you at least annually with audited financial statements of our books and accounts certified by independent public accountants, and with such additional information regarding our financial condition, as you may reasonably request from time to time.
13.Conduct of Business. Other than the currently effective Prospectus and Statement of Additional Information, you will not issue any sales material or statements except literature or advertising which conforms to the requirements of federal and state securities laws and regulations and which have been filed, where necessary, with the appropriate regulatory authorities. You will furnish us with copies of all such material prior to their use and no such material shall be published if we shall reasonably and promptly object.
You shall comply with the applicable federal and state laws and regulations where our Common Shares are offered for sale and conduct your affairs with us and with dealers, brokers or investors in accordance with the Rules of Fair Practice of the Financial Industry Regulatory Authority.
14.Other Activities. Your services pursuant to this Agreement shall not be deemed to be exclusive, and you may render similar services and act as an underwriter, distributor or dealer for other investment companies in the offering of their shares.
15.Term of Agreement. This Agreement shall become effective on [____________] or on such later date approved by the Fund's Board of Trustees, including a majority of those Trustees who are not parties to this Agreement or interested persons (as such term is defined in the 1940 Act) thereof. Unless terminated as provided herein, the Agreement shall continue in full force and effect for two years from the effective date of this Agreement with respect to the Fund listed on Schedule A. Thereafter, unless earlier terminated with respect to the Fund, this Agreement shall continue in effect from year to year for successive one (1) year periods if
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approved at least annually (i) by a vote of a majority of the outstanding voting securities of the Fund or by a vote of the Trustees of the Fund, and (ii) by a vote of a majority of the Trustees of the Fund who are not interested persons or parties to this Agreement (other than as Trustees of the Fund), cast in person at a meeting called for the purpose of voting on this Agreement.
16.Termination. This Agreement: (i) may be terminated at any time without the payment of any penalty, either by vote of the Trustees of the Fund or by a vote of a majority of the outstanding voting securities of the Fund, on sixty (60) days' written notice to you; (ii) shall terminate immediately in the event of its assignment; and (iii) may be terminated by you on sixty
(60)days' written notice to us.
17.Suspension of Sales. We reserve the right at all times to suspend or limit the public offering of the Common Shares upon written notice to you, and to reject any order in whole or in part.
18.Miscellaneous. This Agreement shall be subject to the laws of the State of Arizona and shall be interpreted and construed to further and promote the operation of the Fund as a closed-end "interval" investment company. As used herein, the terms "Net Asset Value," "Offering Price," "Investment Company," "Closed-End Investment Company," "Assignment," "Principal Underwriter," "Interested Person," "Parents," and "Majority of the Outstanding Voting Securities," shall have the meanings set forth in the 1933 Act and the 1940 Act, as applicable, and the rules and regulations promulgated thereunder.
19.Liability. Nothing contained herein shall be deemed to protect you against any liability to us or to our shareholders to which you would otherwise be subject by reason of willful misfeasance, bad faith or gross negligence in the performance of your duties hereunder, or by reason of your reckless disregard of your obligations and duties hereunder.
20.Amendment. This Agreement may be amended with respect to the Fund by the parties only if such amendment is specifically approved by (a) the Trustees or by the vote of a majority of the outstanding voting securities of the Fund, and (b) by the vote of a majority of the Trustees of the Fund who are not interested persons or parties to this Agreement, cast in person at a meeting called for the purpose of voting on such amendment.
If the foregoing meets with your approval, please acknowledge your acceptance by signing each of the enclosed counterparts hereof and returning such counterparts to us, whereupon this shall constitute a binding agreement as of the date first above written.
Very truly yours,
VOYA ENHANCED SECURITIZED INCOME FUND
By: _______________________________
Xxxxxxxx X. Xxxxxxxx
Senior Vice President
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Agreed to and Accepted:
VOYA INVESTMENTS DISTRIBUTOR, LLC
By: ______________________________
Xxxxxx X. Xxxxxxxxx
Senior Vice President
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Exhibit (H)(1)
SCHEDULE A
with respect to the
between
VOYA ENHANCED SECURITIZED INCOME FUND
and
VOYA INVESTMENTS DISTRIBUTOR, LLC
Name of Fund
Voya Enhanced Securitized Income Fund
Effective Date: [ ]
A-1
